Expert witnesses are commonly presented by opposing parties involved in arbitrations to help resolve disputed factual and scientific issues. All too often, however, the opinions of the expert witnesses employed by the opposing parties are in conflict, creating great difficulty for the arbitrators in reconciling the conflicting opinions.
In the typical arbitration case each side presents its witnesses independently. Although the opposing party has the right of cross examination, and the arbitrators themselves have the right to examine the experts, there is almost no way to find any common ground between some opposing experts, creating a quandary for the arbitrators.
One way of dealing with this situation could be for the arbitrators to employ an independent expert at the parties' expense. However, it is often difficult to get opposing parties to agree on the time of day, let alone the selection of an independent expert who may well make the determination of the most critical issue in the case.
Even if the selection of the expert is made by the arbitrators, there is always room for the parties to object that the chosen expert was biased, or for the parties' own experts to disagree with the arbitrators' expert, thus further confusing the issue.
Some arbitrators now use an innovative and highly effective method for reconciling the conflicting opinions of opposing experts. The arbitrators place the two opposing experts on the witness stand at the same time, so that they can be examined simultaneously, asked exactly the same questions, and be put in the position of having to answer each other's arguments directly.
Since there are no absolute rules regarding sequestration of witnesses or order of presentation in arbitration proceedings, arbitration lends itself to this kind of flexibility.
Through questioning of both witnesses by the arbitrator and by both counsel, a point/counterpoint debate can be developed between the two opposing experts.
At the conclusion of the joint testimony, there usually isn't much doubt as to where the scientific or technical truth actually lies. This device provides an efficient way to "smoke out" the true opinions of opposing witnesses, and reveal the ultimate truth of the matter.
The following is an example of a "Protocol" that can be used to implement this process:
Sample Protocol for Examining Opposing Witnesses
- 1.Prior to the hearing the panel will request each counsel to submit each expert's written report and curriculum vitae to opposing counsel and to the panel.
- 2.If, based on the experts' written reports, the opinions of two experts appear to be substantially in conflict, the panel will direct that, at the hearing, both experts will be sworn in at the same time and take the "stand" at the same time. If possible, both experts should be seated side-by-side to facilitate their ability to question each other.
- 3.Unless the panel directs otherwise, claimant's counsel will ask the initial questions, which will be answered both by the claimant's witness and then by the respondent's witness. The same question will be asked of each expert witness. This will allow each witness to answer the question and answer the other witness's response, thus affording counsel and the panel the opportunity to hear both sides of the issue virtually simultaneous. Alternatively, if the panel considers it appropriate in order to avoid any perception of undue advantage, the questioning will be alternated, with each counsel being allowed to ask questions in five question groups, and then the questioning shifts to opposing counsel. (The possible disadvantage of this alternative is that the continuity of questions will be interrupted and the testimony may be disjointed. The order of questioning will be regulated by the panel.)
- 4.At the conclusion of questioning by claimant's counsel, respondent's counsel may ask questions that have not been asked or that are relevant to its case, using the same procedure set forth in Step 3.
- 5.At this point there will be a break in questioning to permit counsel to connect with their own experts. This will be followed by an additional round of questions in the format of Steps 3 and 4. At the option of counsel, this second round of questions maybe asked by the experts of each other, or counsel may continue the questioning, having had input from their respective experts.
- 6.The panel may ask questions of the experts at any time, and should encourage each witness to ask questions of the opposing witness, under supervision by the panel.
- 7.The experts should be informed that the flexibility of the arbitration process encourages them to comment on each other's testimony and even engage in direct dialogue with each other, under supervision by the panel.
The foregoing protocol is a model that works well and can be modified as needs change. Neutrals should not be afraid to recommend this model as an effective means of obtaining this testimony and one that provides cost-saving opportunities. This technique provides an efficient and powerful truth- seeking tool for use in arbitration or any other kind of dispute resolution proceeding.
References:
1.The "protocol" is adapted from Stanley P. Sklar, "Innovations in Arbitration: Using the Tandem Witness Examination When Experts Collide," ADR Currents, Winter 1996-1997.
2.James P. Groton, "Using ADR Methods to Solve the Dilemma When Experts Collide," Arbitration Journal, December 1992.
This article is intended to provide the reader with general information and should not be considered a substitute for specific legal advice or opinion. Readers are advised not to act upon this information without seeking professional counsel.)
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